Opinion
No. 10-17-00174-CV
09-27-2017
IN THE INTEREST OF P.E.M. AND A.M., CHILDREN
From the 77th District Court Limestone County, Texas
Trial Court No. CPS-287-A
MEMORANDUM OPINION
After a jury trial, the trial court signed an order terminating the parental rights of J.L.M., the mother of P.E.M. and A.M. The jury found that J.L.M. violated Family Code subsections 161.001(b)(1)(D), (E), and (M), and that termination of the parent-child relationship between J.L.M. and the children was in the best interest of the children. In her sole issue, J.L.M. contends that the evidence is factually insufficient to establish that terminating her parental rights was in the children's best interest. We will affirm.
The parental rights of W.M., the children's father, were also terminated, but he has not appealed.
In a proceeding to terminate the parent-child relationship brought under section 161.001, the Department of Family and Protective Services must establish by clear and convincing evidence two elements: (1) one or more acts or omissions enumerated under subsection (b)(1) of section 161.001, termed a predicate violation; and (2) that termination is in the best interest of the child. TEX. FAM. CODE ANN. § 161.001(b)(1), (2) (West Supp. 2016); Swate v. Swate, 72 S.W.3d 763, 766 (Tex. App.—Waco 2002, pet. denied). The factfinder must find that both elements are established by clear and convincing evidence, and proof of one element does not relieve the petitioner of the burden of proving the other. Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976); Swate, 72 S.W.3d at 766. "[C]lear and convincing evidence" is defined as "that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." In re G.M., 596 S.W.2d 846, 847 (Tex. 1980).
A factual sufficiency review in a termination case must take into consideration whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the matter on which the petitioner bears the burden of proof. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). A court of appeals must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).
[T]he inquiry must be "whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations." A court of appeals should consider whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding. If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably
have formed a firm belief or conviction, then the evidence is factually insufficient.Id. (footnotes and citations omitted); see C.H., 89 S.W.3d at 25.
We give due deference to the factfinder's findings and must not substitute our judgment for that of the factfinder. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). The factfinder is the sole judge when assessing the credibility and demeanor of witnesses. Id. at 109. The factfinder is free to believe or disbelieve the testimony of any witness, and it may accept or reject all or part of a witness's testimony. In re C.E.S., 400 S.W.3d 187, 195 (Tex. App.—El Paso 2013, no pet.).
The Family Code provides that "the prompt and permanent placement of the child in a safe environment is presumed to be in the child's best interest." TEX. FAM. CODE ANN. § 263.307(a) (West Supp. 2016). In subsection 263.307(b), the Legislature has enumerated a list of factors that should be considered when determining "whether the child's parents are willing and able to provide the child with a safe environment."
The Supreme Court of Texas has also identified factors to consider in determining the best interest of a child, including: (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals; (6) the plans for the child by these individuals; (7) the stability of the home; (8) the acts or omissions of the parent that may indicate the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. Holley, 544 S.W.2d at 371-72. Not all of the factors must be present to support a finding that termination of parental rights is in a child's best interest. In re S.R., 452 S.W.3d 351, 366 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). Nor is this list exhaustive, but simply indicates factors that have been or could be pertinent. Holley, 544 S.W.2d at 372.
In this case, a review of the evidence presented at trial, which is largely undisputed, supports the jury's finding that termination is in the best interest of the children. J.L.M.'s family came to the attention of the Department when a search warrant was executed at her residence by law enforcement officers searching for illegal narcotics. Present at the residence when law enforcement entered were J.L.M. and her two children—P.E.M., who was six years old, and A.M., who was six months old. Teresa Shamblin, an investigator with the Department, testified that she and another caseworker were called to the scene because of the presence of the children and drugs that were accessible to them. Shamblin testified that she observed drugs and paraphernalia in various locations in the residence after their discovery by law enforcement. In an office, she observed an unlocked box containing methamphetamine. She also observed a used methamphetamine pipe under an ottoman. She finally observed methamphetamine and other paraphernalia in the closet in the master bedroom and a pipe and scales on the floor of the master bedroom. J.L.M. testified that she kept her methamphetamine locked away from the children.
J.L.M. was taken into custody by law enforcement, and the children were placed into foster care. J.L.M. remained incarcerated from that point forward. She eventually entered pleas of guilty to possession of methamphetamine with intent to deliver and child endangerment. She received a sentence of eighteen years' imprisonment on the drug charge and eighteen months' confinement on the child-endangerment charge, with both to be served concurrently. J.L.M. testified that she believed she would be paroled in December 2017 after serving less than one year of her sentence.
W.M. also pleaded guilty to possession of methamphetamine with intent to deliver and to an additional charge of assault/family violence. He received a sentence of ten years' imprisonment on the drug charge and seven years' imprisonment on the family violence charge, with both to be served concurrently.
This was not J.L.M.'s first conviction. She testified that she was sent to prison for three years for a "drug related" offense when P.E.M. was approximately eighteen months old. While J.L.M. was incarcerated for this earlier conviction, P.E.M. resided with W.M. and his mother.
J.L.M. testified that she began using drugs again upon her release from incarceration in June 2014. She became pregnant with A.M. approximately four months later. J.L.M. testified that she stopped using drugs when she discovered she was pregnant but admitted that it was possible she was using drugs at the beginning of the pregnancy before she realized her condition. J.L.M. admitted that she resumed her drug use after A.M. was born. She testified that both she and W.M. were using drugs and that she would leave him alone with the children. W.M. testified that he used methamphetamine while the children were in the house but did so in a separate room.
Both J.L.M. and W.M. testified that they used drugs throughout the years of their relationship. J.L.M. testified that they used and sold methamphetamine, and W.M. testified that they also had both used "crack" cocaine in the past. J.L.M. testified that while their use of drugs was initially recreational, their usage increased and they began to sell methamphetamine to support their habit. At one point, they took money out of W.M.'s retirement account to fund their drug habit and business. Both J.L.M. and W.M. testified that they knew that having the narcotics in their home was not good for P.E.M. and A.M.
J.L.M. testified that she will not be involved in drugs when she is released from prison. J.L.M. noted that she has used no drugs since the time the children were placed in foster care and that she completed a twelve-step program while incarcerated. Of course, J.L.M. has been incarcerated since the children were removed from her custody, decreasing her opportunity to obtain illicit drugs. Additionally, J.L.M.'s first incarceration was no deterrent to her drug usage as she testified that she resumed using methamphetamine soon after she was released.
J.L.M. also testified that W.M. was abusive, repeatedly striking and choking her. Both J.L.M. and W.M. testified that one such physical altercation was viewed by P.E.M., who was frightened by the incident. They both also testified that viewing such an event could be emotionally harmful to P.E.M. J.L.M. testified that she had a friend call the police after a subsequent altercation and that W.M. was arrested. However, he was bonded out the next day by J.L.M. and W.M.'s grandmother. Although only a few months old, A.M. was present for that incident. J.L.M. testified that she will not be involved with abusive men in the future. She noted that she divorced W.M. within a few months of her arrest.
Although there is no evidence that either P.E.M. or A.M. were physically abused by either J.L.M. or W.M., the violence that was committed in their presence constitutes a course of conduct that can endanger the children's physical and emotional well-being. See In re H.N.J, No. 10-10-00365-CV, 2011 WL 2937473, at *3 (Tex. App.—Waco Jul. 13, 2011, no pet.) (mem. op.). The factfinder may infer from past conduct endangering the child's well-being that similar conduct will recur if the child is returned to her parent. S.R., 452 S.W.3d at 366.
J.L.M. also acted as a parent to P.E.M. and A.M. for only a short time—the first six months of A.M.'s life and only three years out of P.E.M.'s six years of life. J.L.M. argues that she was involved in all aspects of P.E.M.'s life, including school activities. However, she admitted that she never attended a parent/teacher conference. The only other school involvement to which she testified was taking cupcakes to P.E.M.'s class on one occasion to celebrate P.E.M.'s birthday. J.L.M. also testified that she took the children to doctor's appointments and made them nutritious meals.
In reviewing the parental abilities of a parent, a factfinder "may infer from a parent's past inability to meet a child's physical and emotional needs an inability or unwillingness to meet a child's needs in the future." In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.). Although J.L.M. testified that she wants to make her children the focus of her life, "[e]vidence of a recent improvement does not absolve a parent of a history of irresponsible choices." In re A.M., 385 S.W.3d 74, 83 (Tex. App.—Waco 2012, pet. denied).
Angie Barber, a conservatorship worker for the Department, was assigned to work with P.E.M. and A.M. She testified that the first foster placement for the children was not successful because of problems the foster family encountered in keeping up with required paperwork. The children were thus placed with a family in Georgetown, who has expressed the desire to adopt both P.E.M. and A.M.
Barber testified that shortly after P.E.M. and A.M. were removed from their parents, P.E.M. told Barber that P.E.M. wanted her parents to come and get her and take her away so they could live together as a family again. Barber further testified that P.E.M. told her that she wanted her father to stop choking her mother and that there would be no more bad words, hair pulling, or pushing each other down.
After a few months with the second foster family, P.E.M. had a different opinion of her situation. Both Barber and the adoptive mother testified that P.E.M. is happy in her present home, has bonded with the family, including the foster parents' two biological sons, and has extended family and friends for support. Both P.E.M. and A.M. call their foster parents "mommy" and "daddy." Barber testified that although P.E.M. still loves her parents and wants to visit them, she wants to stay where she is with the foster family. The foster mother testified that P.E.M. has said that she wants to be adopted by them.
Barber testified that P.E.M. experiences stomach problems as a result of stress and anxiety, which Barber believes occurs each time Barber visits the family. Barber testified that she believes the uncertainty of the situation is the cause of P.E.M.'s problems. J.L.M. testified that she believes P.E.M.'s stress and anxiety are due to being removed from her parents.
The only definite future plan J.L.M. identified is for P.E.M. and A.M. to remain indefinitely in foster care until such time as she is released from prison. As previously noted, J.L.M. believes she will be released on parole in December 2017. There is, however, no evidence that she will be paroled as early as she anticipates, and"[p]arole decisions are inherently speculative." H.R.M., 209 S.W.3d at 109. Additionally, J.L.M. did not testify how long an offer of a house and a job by her former employer will be available. Nor did she identify any type of back-up plan if those opportunities are no longer available when she is released. The jury, as the finder of fact, was free to reject J.L.M's assertions of future stability. See A.M., 385 S.W.3d at 83.
The goal of establishing a stable, permanent home for a child is a compelling state interest. Dupree v. Tex. Dep't of Protective & Regulatory Servs., 907 S.W.2d 81, 87 (Tex. App.—Dallas 1998, no writ). "The need for permanence is the paramount consideration for the child's present and future physical and emotional needs." Id. The factfinder may compare the parent's and the Department's plans for the child and consider "whether the plans and expectations of each party are realistic or weak and ill-defined." J.D., 436 S.W.3d at 119-20. A parent's failure to show that he or she is stable enough to parent children for any prolonged period entitles the factfinder "to determine that this pattern would likely continue and that permanency could only be achieved through termination and adoption." In re B.S.W., No. 14-04-00496-CV, 2004 WL 2964015, at *9 (Tex. App.—Houston [14th Dist.] Dec. 23, 2004, no pet.) (mem. op.). A factfinder may also consider the consequences of its failure to terminate parental rights and that the best interest of the children may be served by termination so that adoption may occur rather than the temporary foster-care arrangement that would result if termination did not occur. D.O. v. Tex. Dep't of Human Servs., 851 S.W.2d 351, 358 (Tex. App.—Austin 1993, no writ) disapproved on other grounds by J.F.C., 96 S.W.3d at 267 & n. 39.
In light of the foregoing and having reviewed all of the evidence, we hold that the jury could have reasonably formed a firm belief or conviction that termination of J.L.M.'s parental rights was in the children's best interest. The evidence is therefore factually sufficient to establish that termination of J.L.M.'s parental rights was in the children's best interest. We overrule J.L.M.'s sole issue and affirm the trial court's order of termination.
REX. D. DAVIS
Justice Before Chief Justice Gray, Justice Davis, and Justice Scoggins (Chief Justice Gray concurring with a note)*
Affirmed
Opinion delivered and filed September 27, 2017
[CV06] * (Chief Justice Gray concurs in the judgment of the Court to the extent it affirms the trial court's order terminating appellant's parental rights. A separate opinion will not issue.)